Opinion
December Term, 1849.
Where, on a capital trial, the prisoner challenges a juror for favor, and the solicitor for the State admits the cause to be true, the prisoner is bound by his challenge, and cannot afterwards be allowed to have the matter tried, either by the triers or the court.
APPEAL from the Superior Court of Law of BUNCOMBE, at Fall Term, 1849, Ellis, J., presiding.
The prisoner was indicted for rape. In forming the jury, a person tendered was challenged by him for favor, and the counsel for the State admitted the cause assigned to (396) be true, and the court thereupon allowed it. On the part of the prisoner it was then insisted that the admission that the juror was not indifferent for the prisoner did not of itself authorize his discharge, and that the prisoner had a right to examine him on oath touching that matter, and, if it should thereby appear that he was indifferent, then that the prisoner had a right to elect him of his jury. But the court refused to consider the matter further.
The woman alleged to have been violated was examined on the trial, and, after proving the fact, she stated, as a part of her testimony, that she made no outcry at the time, and gave no information of the injury to any person for four or five months after it occurred — assigning as the reason for her conduct in those respects that the prisoner threatened to kill her if she did not submit, or if she should ever tell any one. Evidence was further given to support and discredit the testimony and character of the witness. The counsel for the prisoner moved the court thereupon to instruct the jury that the great length of time before prosecutrix made known the alleged violence created such a presumption against the truth of her testimony that the jury ought not to rely on it, but ought to acquit the prisoner. The court refused to give that instruction, but informed the jury that the admission of the witness, that she made no outcry, and that she concealed the alleged wrong so long, was a circumstance which tended to her discredit, and ought to be considered by the jury accordingly; and that it was for them to determine from those circumstances, and from the reason she gave for her conduct, together with the evidence of her character, and the other evidence affecting her credibility, how far she was entitled to belief. And the court further instructed the jury that, after considering all the evidence, if they should be of opinion, beyond a reasonable doubt, that the prisoner had carnal (397) knowledge of the prosecutrix, forcibly and against her will, they ought to find him guilty; but if they should be of opinion that he did not have carnal knowledge of her, or, if he had, that it was not against her will, they ought to find him not guilty.
The indictment lays the day of the offense on 9 April, 1849; and in the caption of the record it appears that the term of the court at which the bill was found began and was held the second Monday after the fourth Monday in March, 1849, which was 9 April. It further appears on the record that the witnesses were sworn and the bill was sent to the grand jury on 10 April, 1849. The prisoner was convicted, and appealed.
Attorney-General for the State.
W. H. Haywood for defendant.
The challenge of the juror was properly allowed. A party has no right to examine the juror or any other person by way of fishing for some ground of exception. A challenge must be made and a specific cause assigned, and that cause denied on the other side, before evidence can be heard; for, until that be done, there is no issue for the decision of the triers or of the court in their stead. When one party, in order to save time, or from a conviction of its truth, confesses the other's cause of challenge, it must necessarily be held to be true; and the one cannot complain of the allowance of his own exception, nor the other of the reception of its admission.
The effect to be given to the testimony of the woman depended upon the credit to which she was entitled; and that was a question exclusively for the jury, and it was fairly left to them.
It has been suggested that the indictment may be defective in not averring the offense to have been committed at some hour of the day before the inquisition taken, since the (398) day stated in the bill and that on which the court began is the same. If there were anything in the objection, it would not apply here, as the record shows affirmatively that the bill was sent to the grand jury on the second day of the term, and so it must have been found after the offense charged.
The Court do not see any other ground on which the judgment can be reversed, and it must stand affirmed.
PER CURIAM. Ordered to be certified accordingly.